By orders issued shortly after 5:00 pm today, the Second Circuit vacated the Statewide order of federal Justice Hurd of the United States District Court for the Northern District of New York, which had established the right of providers to grant religious exemptions.

As we had reported, earlier this month, Judge Hurd issued a Statewide injunction, ordering healthcare providers to consider and, where appropriate, grant religious exemptions from the NYS healthcare worker vaccination mandate to employees.  Under Judge Hurd’s order, covered providers were allowed to continue employing home care workers whose sincerely held religious beliefs prevented them from complying with the State’s healthcare worker vaccination mandate. However, as a result of today’s Second Circuit’s vacatur of Judge Hurd’s decision, the Department of Health may proceed to enforce the vaccine mandate against healthcare workers as the vaccination mandate was originally written. The State issued the healthcare worker COVID vaccine regulation, and the regulation did not allow providers to consider and grant religious exemptions to healthcare workers. It was only because of litigation and Justice Hurd’s order that agencies were permitted to continue employing aides under a religious exemption. Again, with today’s Second Circuit order, covered home care providers are expected to comply with 10 NYCRR 2.61 to the full extent, and Section 2.61 only allows providers to grant medical (not religious) exemptions from the State mandate for employees of LHCSAs and other covered providers.

Employees of home care agencies who are currently working under the religious exemption must immediately be vaccinated or inactivated. It is not clear how quickly the Department of Health will move to enforce Section 2.61, but as a result of today’s Second Circuit decision, workers in the field who are working under a religious exemption basis are out of compliance. This means that their employers, the LHCSAs and other covered healthcare providers who employ those workers, are also out of compliance.

The litigation regarding the religious exemption will continue, but there is no longer a Statewide injunction in place allowing providers to continue providing the religious exemption. We will update you on further developments in the litigation.

Full opinions from the Second Circuit on today’s decisions will follow shortly and we will report on that when the opinions are published.

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